Parliamentary privilege did not extend to firing security guards for misconduct, the Supreme Court of Canada ruled today in dismissing an appeal by the president of Quebec’s National Assembly.

Yael Bienenstock of Torys LLP says s. 120 of the Act Respecting the National Assembly qualifies personnel of the National Assembly as civil servants unless they are appointed by regulation derogating from the Public Service Act.

“The scope of parliamentary privilege is delimited by the purposes it serves, and extends only so far as is necessary to protect legislators in the discharge of their legislative and deliberative functions, and the legislative assembly’s work in holding the government to account for the conduct of the country’s business,” wrote Justice Andromache Karakatsanis for the court, with Chief Justice Richard Wagner and justices Rosalie Abella, Michael Moldaver, Clément Gascon, Malcolm Rowe and Sheilah Martin concurring.

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“Because courts cannot review the exercise of parliamentary privileges, even on Canadian Charter of Rights and Freedoms grounds, they must ensure that the protection provided by a privilege does not exceed its purpose.”

Three security guards at the National Assembly of Quebec were dismissed by Jacques Chagnon, president of the National Assembly of Quebec, following an investigation that revealed they were using a National Assembly camera to observe activities in the rooms of adjacent hotels. The guards were represented by their labour union, the Syndicat de la fonction publique et parapublique du Québec, and a grievance was filed contesting their dismissal.

The president of the National Assembly of Quebec raised a preliminary objection to the tribunal’s jurisdiction, arguing that he had acted in the exercise of two constitutional parliamentary privileges: the privilege over the management of employees and the privilege to eject strangers from the National Assembly and its precincts.

The arbitrator found that the dismissals were not protected by either parliamentary privilege and that the grievances could, therefore, proceed. The reviewing judge agreed with the arbitrator’s reasoning with regards to the privilege to exclude strangers, but the judge found that the decision to dismiss the security guards was protected from review by the privilege over the management of employees. A majority of Quebec’s Court of Appeal held that the arbitrator had correctly concluded that the dismissals were not protected by parliamentary privilege.

In dismissing the appeal of the National Assembly’s president, the majority concluded that “[a]lthough the President is entitled to exercise his management rights and dismiss security guards for a just and sufficient cause, parliamentary privilege does not insulate the President’s decision from review under the labour regime to which the guards are subject.” In other words, the affected employees could be dealt with under ordinary law.

“Everyone agreed that parliamentary privilege applies as long as . . . the employees are necessary to the legislative body to perform their constitutional role,” Yael Bienenstock,civil litigator at Torys LLP in Toronto, told Legal Feeds. The majority concluded that as long as the legislative body can perform its constitutional role, even with the employees being managed under general law, then it’s not necessary to exercise the parliamentary privilege.

“[T]he tasks performed by the guards are important, but subjecting their management to ordinary law would not hamper the autonomy which the National Assembly requires to discharge its constitutional mandate,” Karakatsanis wrote.

In dissenting reasons, justices Suzanne Côté and Russell Brown noted that “it is essential that [any legislative assembly] operate in a secure environment” and that “security is therefore a sphere of activity that is protected by absolute parliamentary privileges,” and all decisions relating to security fall within this sphere of activity, including all tasks performed by an assembly’s security guards. As well, Quebec’s Act respecting the National Assembly “must be interpreted in such a way that it does not implicitly abrogate these privileges.”

Section 120 of the ARNA qualifies personnel of the National Assembly as civil servants, says Bienenstock, “unless they are appointed by regulation derogating from the Public Service Act.”

Rowe, in concurring reasons, “says that based on the ARNA, [the guards are] subject to ordinary law,” says Bienenstock. If the National Assembly wanted a specific group of employees to be removed from the overall scheme, it could do so through a specific derogation procedure, but it hasn't done that yet.

The Supreme Court unanimously agreed that the applicable standard of review was correctness. In December, the court will be hearing a trilogy of cases — Bell Canada v. Attorney General of Canada; National Football League v. Attorney General of Canada; and Minister of Citizenship and Immigration v. Alexander Vavilov — that will address standard of review.

“Given that the Court will soon be considering the nature and scope of judicial review — possibly including the concept of “true question of jurisdiction” . . . we do not think it appropriate to address this issue,” wrote the dissenting justices in today’s decision.

“I think what they’re saying is stay tuned, part two is coming!” Bienenstock says.

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